After Kavanaugh's Partisan Rant, How Can We Ever Believe He Is Neutral?

Brett Kavanaugh's testimony raised questions about his neutrality and temperament ahead of his confirmation vote.

Americans were introduced to an entirely unknown side of Supreme Court nominee Brett Kavanaugh on Thursday as he testified before Senate Judiciary Committee, defending himself against sexual assault allegations.

Rather than the calm and collected nominee who sat before the committee during his confirmation hearings, offering measured responses and showing the temperament one would expect from a sitting judge, Kavanaugh became aggressive and emotional as he answered the charge brought against him.

The New York Times noted that Kavanaugh himself said earlier this month that “The Supreme Court must never be viewed as a partisan institution” — but his confirmation could take American further down that path.

> His performance on Thursday, responding to accusations of sexual misconduct at a hearing of the same Senate committee, sent a different message. Judge Kavanaugh was angry and emotional, embracing the language of slashing partisanship. His demeanor raised questions about his neutrality and temperament and whether the already fragile reputation of the Supreme Court as an institution devoted to law rather than politics would be threatened if he is confirmed

> “This whole two-week effort has been a calculated and orchestrated political hit,” he said, “fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.”

> In a sharp break with decorum, Judge Kavanaugh responded to questions about his drinking from two Democratic senators — Amy Klobuchar of Minnesota and Sheldon Whitehouse of Rhode Island — with questions of his own about theirs. He later apologized to Ms. Klobuchar.

Kavanaugh was already seen by many as a highly partisan pick — one of the most partisan in recent memory, by some accounts.

> The charged language recalled Judge Kavanaugh’s years as a partisan Republican, working for Ken Starr, the independent counsel who investigated a series of scandals involving Bill and Hillary Clinton, and serving as an aide in the administration of George W. Bush. It was less consistent with the detached judicial temperament that lawyers associate with an ideal judge.

The Times recalled comments previously made by Chief Justice John G. Roberts Jr. in which he lamented the partisan nature of confirmation hearings and the damage they do to the institution:

> “When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said in 2016. “If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”

> Chief Justice Roberts spoke in the wake of a series of confirmation hearings tinged with partisanship but nothing like the all-out war the American public saw on Thursday. If the chief justice feared that the court’s reputation could be damaged by them, he has reason to be terrified now.

Experts in law and psychology weighed in on Kavanaugh’s performance on Thursday, and the consensus was that, if confirmed to the Supreme Court, his work undoubtedly would be affected by what was witnessed at the hearing.

> “Every bit of research ever done on the subject concludes that judges are human beings with emotional reactions that influence how they decide cases,” said Jeffrey J. Rachlinski, a law professor at Cornell.

> “This process clearly has ignited a passionate reaction in Judge Kavanaugh that will doubtless influence him for the rest of his life,” Professor Rachlinski said. “Research on how emotions influence judges suggests that he will be unable to set this experience aside when deciding cases involving relevant subjects or parties who are closely aligned with those he has today treated as personal enemies.”

> Eric J. Segall, a law professor at Georgia State, said Thursday’s hearing both illuminated Judge Kavanaugh’s political outlook and was likely to affect his voting on the Supreme Court if the Senate confirms him.

> “His time in the executive branch and his work for Starr suggested he was one of the most partisan nominees in a long time,” Professor Segall said.

> “I would think that any person, even acting in totally good faith, would not be able to put aside the obvious trauma of this hearing for him, whether he’s telling the truth, lying or suffering from cognitive dissonance,” Professor Segall said. “This kind of event could greatly affect one’s decision making in the gray areas that most Supreme Court cases present.”